San Jose’s city attorney has recommended that the city pay nearly $5 million to a man who survived after being shot 25 times in 2011 by police who mistook a toy gun that was part of his Halloween costume for a real firearm.
City Attorney Richard Doyle said the money would settle a federal lawsuit filed by Javier Gonzales-Guerrero, 27, and pay for his medical bills, future support and loss of income.
The proposed settlement, to be considered by the City Council at its meeting on Sept. 24, balances the city’s interests and “covers his damages and long term care,” Doyle said.
“It’s a tragedy,” Doyle said. “He’s going to require lifetime assistance.”
On Oct. 23, 2011, Gonzales-Guerrero passed out at about 4 a.m. at the Extended Stay Hotel at 55 E. Brokaw Road after drinking heavily at a costume party.
Gonzales-Guerrero was dressed for Halloween in hospital scrubs and had the toy gun in his waistband, Doyle said.
He was so intoxicated that he was unable to locate his room at the hotel and fell asleep on an interior stairwell, Doyle said.
Hotel staff found him and called police at about 7:45 a.m., according to San Jose police.
Police did not know whether the gun in his waistband was real, and after awakening him, officers instructed him not to touch it, but he allegedly appeared to move his hand toward the gun, Doyle said.
The officers, identified in the federal suit as defendants Brian Johst, Mark Stephens, Gary Petrakovitz and Tim Stephens, then fired 28 bullets at Gonzales-Guerrero, hitting him 25 times, mainly in the lower body, Doyle said.
“I think the officers felt in good faith he was going for his gun, but they were mistaken,” Doyle said.
Gonzales-Guerrero survived but suffered “serious, life-altering injuries to his body,” Doyle said.
The $4.95 million compensation figure was reached after multiple mediation sessions between city staff and Gonzales-Guerrero that included a retired judge and independent council as separate mediators, Doyle said.
Coming to a resolution was a better option for the city than taking the case to trial, which could have resulted in a higher payout, Doyle said
In his analysis of the case, Doyle wrote that the negotiated settlement “completely resolves a federal court lawsuit with considerable financial risk if a jury were to side with the plaintiff.”
The money for the settlement will come from the city’s general liability claims reserve fund, Doyle said.
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